A co-owner who unilaterally improves the property cannot claim to have become the absolute owner but can claim a contribution from the other co-owners.

Girish Chandra Gupta, J.

FAT No. 115 of 2013 is directed against a preliminary decree passed in the partition suit being Title suit/Case No.126 of 2007 by which share of the sole plaintiff and the sole defendant was declared at 50% each in the suit property and they were directed to effect partition amicably within three months, failing which the parties were granted liberty to apply before the learned Trial Court for effecting the partition with the assistance of Court.

2. FAT No. 243 of 2013 is an appeal against the selfsame preliminary decree at the instance of the sister of the parties to the suit property. She claims that she has right, title and interest in the land jointly purchased by the plaintiff and the defendant on the basis that both of them have admitted during their deposition in the suit that they utilized money left by their mother in purchasing the land. It is on this basis that she applied for leave to prefer an appeal. Both the appeals were taken up together for hearing.

3. The following issues were framed during the trial :-

“(1). Whether the suit is maintainable in its present form and in law?

(2). Whether the plaintiff has any cause of action to file the suit?

(3). Is the suit bad for non-joinder of necessary parties?

(4). Is the suit barred by the principle of waiver estoppel and acquiescence?

(5). Whether the suit property is ejmal property?

(6). Whether the plaintiff is joint owners of the suit property and he is entitled to 50% share in the suit property?

(7). Whether the plaintiff is entitled to get a decree of permanent injunction restraining the defendant from executing any deed in respect of his 50% undivided share of the suit schedule property?

(8). Whether the plaintiff is entitled to get the decree as prayed for?

(9). To what other relief or reliefs the plaintiff is entitled to get as per law and enquiry?”

4. The learned Trial Court has decided the issue No.6 in favour of the plaintiff and it is on this basis that the preliminary decree was passed.

5. It is not in dispute that the land was purchased jointly by the plaintiff and the defendant. The dispute between the plaintiff and the defendant is restricted to the cost of construction. According to the plaintiff they jointly applied to the Uttarpara, Kotrang Municipality for sanction of a building plan and a one storied building was made by spending money equally. The plaintiff ordinarily is a resident of Raniganj. He used to come to the suit premises twice a week during the period of construction. The title deed of the land in question was deposited with the bank for the purpose of obtaining a house-building loan. The LIC policy of the plaintiff was also mortgaged in favour of the banker in order to secure the loan. The plaintiff resided at the suit premises whenever he came down to Uttarpara where the suit premise is situated. The objection, for the first time, was raised by the defendant during his last visit on 7th June, 2007.

6. The plaintiff at that juncture asked for amicable partition to which the defendant did not agree. Thereafter a notice dated 12th June, 2007 through a learned Advocate of the plaintiff was served upon the defendant.

7. The case of the defendant, however, is that the plaintiff gave consent to the defendant to raise the construction on the condition that he shall not bear any part or portion of the cost of construction. His further case is that the plaintiff, as a matter of fact, wanted to gift the property to the defendant and for that purpose consent of the bank was also obtained by him.

8. Not one paisa was spent by the plaintiff in raising the construction nor did he even meet the defendant since 2002. It is on this basis that the defendant prayed for dismissal of the suit for partition.

9. The learned Trial Court in answering the issue no. 6 in favour of the plaintiff has advanced the following reasons:-

(a) The land is jointly owned by the plaintiff and the defendant having 50% share each.

(b) The defendant has admitted